Lawsuit that challenges H-4 spouses’ right to work can move forward

8 Nov 19

UNITED STATES

A lawsuit that challenges the 2015 regulation allowing certain H-4 spouses to apply for employment authorization documents (the “H-4 EAD rule”) may go forward, a federal appeals court has ruled in reversing the lower court’s dismissal of the lawsuit.

The lawsuit, brought by a group of tech workers called Save Jobs USA, claims that the Department of Homeland Security lacks authority to allow H-4 spouses to work and that the rule unfairly increases competition against American tech workers.

Key points:

  • The H-4 EAD rule remains in place at this time and eligible H-4 spouses may continue to apply for and renew their employment authorization documents.
  • The appeals court ruled that the lawsuit may move forward on the basis of the “actual or imminent” increase in competition it poses for tech jobs.
  • The Trump administration has been working toward rescinding the H-4 EAD rule for nearly two years. A proposal for a rescission rule has been pending review at the Office of Management and Budget since February, and the agency recently indicated it intends to propose a rescission rule in spring 2020 at the earliest.

Background: The 2015 Obama-era rule permits spouses of certain H-1B workers who are already in the process of applying for permanent residence to apply for employment authorization in the U.S. The tech workers sued to stop the rule from taking effect but a trial court dismissed the suit, finding that they lacked standing to sue because they failed to show that H-4 spouses competed with them for jobs in the tech field. The appeals court, however, found that they proved standing on the basis of their argument that allowing H-4 spouses to work incentivizes H-1B workers to remain in the U.S. and therefore compete with them for jobs.

BAL Analysis: The appeals court ruling means that the lawsuit can move forward at this stage and will continue at the district court level. At this time, the H-4 EAD rule remains in place and eligible H-4 spouses may continue to apply for employment authorization. BAL is closely monitoring the progress of the litigation and the proposed rescission regulation and will provide updates as more information becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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